An unconstitutional constitution? A comparative perspective

ARTICLE

An unconstitutional constitution?A comparative perspective

Gary Jeffrey Jacobsohn*

My purpose in this article is to draw upon a rich vein of jurisprudential thinking from

judiciaries outside of the United States to address the puzzle of the unconstitutional

constitutional amendment. I focus on two nations—India and Ireland—where the

question has given rise to some fascinating and instructive jurisprudence. Unlike the

United States Supreme Court, courts in these countries have confronted the issue

of implied substantive limits to constitutional change through the formal amendment

process. The Indian judiciary has invoked the idea of constitutional identity to

legitimate overturning amendments, whereas the Court in Ireland has found such

activity antithetical to popular sovereignty. In considering what is at stake for

constitutional theory and practice, I rely on Edmund Burke to support the option of

amendment invalidation, while concluding that if ever confronted with the felt need to

exercise this option, sober heads might well wonder whether it would be worth doing.

To enable us to correct the constitution, the whole constitution must

be viewed together; and it must be compared with the actual state of

the people, and the circumstances of the time.1

Edmund Burke

Can a constitution be unconstitutional? In most countries this is not a

question that is generally given serious consideration. We might also think

the query slightly bizarre, rather like asking whether the Bible can be

unbiblical. But it is, in fact, a profoundly important question—for students of

constitutionalism and for both the citizens and prospective citizens of a

constitutional regime. The latter category included the great mathematician

Kurt Godel, who, as a well-known anecdote has it, entertained last minute

doubts about acquiring American citizenship after discovering that under

article 5 it would be possible to change the Constitution into something with

which he, a refugee from Nazi tyranny, would not wish to be associated.

* Patterson-Banister Professor of Political Science and H. Malcolm MacDonald Professor of Comparative and

Constitutional Law, University of Texas at Austin. Email: [email protected]

1 Edmund Burke, To the Chairman of the Buckinghamshire Meeting—12 April 1780, in SELECTED

LETTERS OF EDMUND BURKE 243 (Harvey C. Mansfield, Jr. ed., Univ. Chicago Press 1984).

ª The Author 2006. Oxford University Press and New York University School of Law. 460All rights reserved. For Permissions, please email: [email protected]

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He ultimately set aside his reservations with the help of another refugee

Albert Einstein.2

Constitutionalism is about limits and aspirations; whether there are

implicit substantive constraints on formal constitutional change is a question

that implicates our most basic intuitions—as well as our most troubling

uncertainties—about constitutions. Perhaps the critical moment in the

design of constitutional arrangements occurs when drafters confront the

vexed issue of how much freedom to extend to subsequent amenders of their

handiwork. Should the later agents of change enjoy a status equivalent to

that of the architects of the original design, such that the creations of both

would be similarly immune to assaults upon their legitimacy? Surely there

are actions that should not be undertaken through the invocation of

constitutional language. Yet if these possibilities are so horrible to

contemplate, much less to integrate with our sense of what it means to

live constitutionally, then a known solution exists: prohibit them from

happening by explicitly making them illegal by means of amendment. In the

United States, for example, one might, like Godel, think there are deeds worse

than altering representation in the Senate, but inasmuch as these things

were not textually designated untouchable by the founders, it is easy to

sympathize with those—and they include most commentators on the

subject—who find the idea of an implicitly unconstitutional constitutional

amendment deeply problematic, to say nothing of hopelessly circular.3 In

what follows I argue that we should view that idea sympathetically. But the

importance of the issue to the theory of constitutional democracy—and

sometimes its practice—requires that we retain a healthy skepticism toward

arguments that might be advanced on its behalf.

Globally, there has been considerable variation in the extent of judicial

consideration of the issue. The U.S. Supreme Court has largely ignored it.

Cases involving the Eighteenth and Nineteenth Amendments provided the

justices with opportunities to consider whether substantive limits on

constitutional amendments warranted the imprimatur of the Court, but

that tribunal avoided any serious engagement with the issue even while

evincing a lack of sympathy for it.4 In the nineteenth century, the original

proposal for a thirteenth amendment, better known as the Corwin

amendment, would have proved a less avoidable occasion had it not

been for the untimely intervention of the Civil War. So we will never know

if an amendment removing congressional abolition of slavery from the

2 The most recent telling of this story may be found in Margaret Talbot, The Scalia Court, THE NEW

YORKER, February 28, 2005, at 84.

3 See, e.g., Raymond Ku, Consensus of the Governed: The Legitimacy of Constitutional Change,

64 FORDHAM L. REV. 535, 540 (1995).

4 The cases are National Prohibition Cases, 253 U.S. 350 (1920), and Leser et al. v. Garnett et al,

258 U.S. 130 (1922).

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parameters of article 5 would itself have been held to be an abuse of the

amendment provision.5 We can only speculate about whether the

implications of such an entrenchment were sufficiently revolutionary to

give pause to even the most committed defender of amendatory prerogative.

That question aside, my principal purpose in this article is to draw upon a

rich vein of jurisprudential thinking from judiciaries outside of the United

States to address the puzzle of the unconstitutional constitutional amend-

ment. If U.S. jurisprudence has been spare in its consideration of the

question, other national courts have given it detailed attention and

reflection. Indeed, more judicial commentary on the subject may be found

coming from Africa and Latin America than from the bench of the U.S.

Supreme Court.6 The most recent examination is in an extensive treatment

of the issue by the Supreme Court in Peru, which, while upholding the

constitutional amendment in question, embraced the concept that it had the

authority to do otherwise.7 According to the Court, all institutions must be

faithful to the Constitution, including the Congress. The idea that the reform

of the Constitution is a political act that cannot be revised by the judiciary

was rejected; thus, it is the Peruvian Court that must guarantee the

Constitution’s principles (principios juridicos) and basic democratic values

(valores democraticos basicos).8 It is, however, in India where the debate has

been pursued at greatest length and where one finds the most daring and

innovative decisions on the reach of constitutional power. Of course,

opinions in India go to great lengths about all manner of things; still, the

patient reader will be amply rewarded by a discussion of constitutional

maintenance and change whose comprehensiveness is unrivalled in world

jurisprudence.

Nevertheless, this will not be a discourse on the activism of the Indian

Supreme Court; in fact, before arriving on the subcontinent I want to make

5 The text of the Corwin amendment: ‘‘No amendment shall be made to the Constitution which

will authorize or give to Congress the power to abolish or interfere, within any State, with the

domestic institutions thereof, including that of persons held to labor or service by the laws of

said State.’’ Cong. Globe, 36th Cong., 2d Sess. 1263 (1861). For further discussion of the

amendment, see MARK BRANDON, FREE IN THE WORLD: AMERICAN SLAVERY AND CONSTITUTIONAL FAILURE

(Princeton Univ. Press 1998); and A. Christopher Bryant, Stopping Time: The Pro-Slavery and

‘Irrevocable’ Thirteenth Amendment, 26 HARVARD J. L. & PUB. POL’Y 501 (2003).

6 See the Uganda case, Ssemogerere et al. v. Attorney General, Constitutional Appeal No. 1 of 2002

(2004). Another decision from Africa, the famous South African Certification case, while not

technically an amendment case, is critical in revealing the reasoning that can lead judges to

declare constitutional amendments unconstitutional. Certification of the Constitution of the

Republic of South Africa, 1996, CCT 23/96.

7 The occasion was a group of cases known as the ‘‘Reform of the Pensionary System of Law’’

cases (No. 0050-2004-AI/TC, No. 004-2005-PI/TC, No. 007-2005-PI/TC, No. 009-2005-PI/

TC), decided in 2005.

8 Id., Section VI, A.

462 Int’l J Con Law, Vol 4, No 3 (Jul 2006) G. J. Jacobsohn

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a stop in Ireland, where the categorical rejection of implied limits on

constitutional amendments is, perhaps, as surprising as is the openness to

the idea in India. Ultimately, though, my concern is less with the

experiences of these countries than it is with the ways in which we theorize

about constitutions.

For those polities that are constitutional democracies in more than name

only, the classic tension between popular governance and restraints on

power has been addressed through sovereignty-based arguments that

suppose that, in the limitations imposed on the expression of the popular

will, there exists a more profound manifestation of democratic legitimacy,

the constituent power. This is the power that represents the people in a

regime’s foundational enactment, which is activated, according to some, on

those occasions when the trigger of formal constitutional transformation

is pulled, and which, according to others, can only be approximated in

these subsequent amendments. The conflation of parliamentary and popular

sovereignty that allowed the British to function without a written

constitution was a fiction that Americans, in establishing a new nation,

were required to reject.9 Their new fiction allowed them to establish a basis

for the belief that other institutions—principally the Court—could, through

the invocation of a written constitution, embody the original popular will

and, in this way, legitimately check democratic transgressions. On balance

it has proved to be a useful fiction.

I want to suggest that we reduce our dependency on theorizing

predominantly in these terms because it has sometimes obstructed clear

thinking about constitutionalism and, specifically, about constitutional

change. Those who have argued for implicit limits on the power of

amendment have often invoked the theory of popular sovereignty, and those

who have opposed them have, just as often, found the theory sufficiently

supple to provide justification for their counterarguments. So, on one side,

we have arguments that use popular sovereignty to establish the

immutability of certain constitutional rights; as, for example, in Jeffrey

Rosen’s claim that ‘‘By refusing to enforce the Flag Burning Amendment, a

Court would defer to, rather than thwart, the sovereign will of the people.’’10

And, on the other side, one finds claims like that, by Walter Dellinger, that

‘‘An unamendable constitution, adopted by a generation long since dead,

could hardly be viewed as a manifestation of the consent of the governed.’’11

9 The best account of the transition from British to American notions of sovereignty will be found

in EDMUND S. MORGAN, INVENTING THE PEOPLE: THE RISE OF POPULAR SOVEREIGNTY IN ENGLAND AND

AMERICA (W. W. Norton 1988).

10 Jeffrey Rosen, Was the Flag Burning Amendment Unconstitutional? 100 YALE L J. 1073, 1092

(1991).

11Walter Dellinger, The Legitimacy of Constitutional Change: Rethinking the Amendment Process,

97 HARVARD L. REV. 386, 387 (1983).


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Here we hear the echoes of James Madison, who insisted ‘‘The people were in

fact, the fountain of all power, and by resorting to them, all difficulties were

got over. They could alter constitutions as they pleased.’’12 Madison, of

course, also famously cautioned against ‘‘frequent reference of constitutional

questions to the decision of the whole society,’’ concerned as he was not to

‘‘deprive the government of that veneration which time bestows on every

thing.’’13 And there is, in addition, a further difficulty to disturb one’s

philosophical equanimity: What if the people exercise their presumed

constituent authority to destroy the Constitution in the name of change and

progress?14

Edmund Burke, no great friend of popular sovereignty, to be sure,

nonetheless can help to solve the amendment puzzle. It is not, however, this

thinker’s coolness toward the consent of the governed that I embrace. Burke

spent a career being mainly correct about India, Ireland, and the United

States. His opposition to the tyrannies of George III in America and Warren

Hastings in India were directed at both of these rulers’ abstract appeals to

sovereign rights. Ultimately, though, his attractiveness, here, transcends his

notable political track record and lies in the clarifying lens he offers into

critical issues of constitutional change. I refer, specifically, to his depiction

of the nation as an ‘‘idea of continuity,’’ his commitment to a politics of

identity uncompromised by the destructive lure of ‘‘geographical morality’’

(that is, a morality only relevant and relative to its locale), and his elevation

of reform as a strategy to conserve the fundamentals of constitutional

structure. But first I want to explore the dilemma of the unconstitutional

amendment in two nations where it has given rise to some fascinating and

instructive jurisprudence.

12 JAMES MADISON, NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787 564 (W. W. Norton 1987).

Akhil Reed Amar is, perhaps, the most prominent exponent of the theory of popular sovereignty

as a continuing source for the legal authority to ‘‘alter or abolish,’’ in his account even

independently of the article 5 process. Among others, principally James Wilson, Amar enlists

Madison in support of his (and controversially the American framers’) position that popular

sovereignty provides a license to change the Constitution in accordance with majoritarian

sentiment. Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment Outside

Article V, 94 COLUM. L. REV. 457, 470–471(1994).

13 THE FEDERALIST NO. 49, at 314–315 (James Madison) (Clinton Rossiter, ed., 1961). See Sanford

Levinson, Veneration and Constitutional Change: James Madison Confronts the Possibility of

Constitutional Amendment, 21 TEX. TECH L. REV. 2443 (1990).

14 Lest anyone worry about the scope of my ambitions, I hasten to add that challenging

‘‘government of the people, by the people, and for the people’’ is not my purpose here, although

it may be of more than passing interest that the author of that immortal prose once saw fit to

refer to popular sovereignty as ‘‘a pernicious abstraction.’’ The abstract character of the

discourse on sovereignty is, of course, present throughout its history. As Gordon Wood has

noted, the doctrine of sovereignty ‘‘was the single most important abstraction of politics in the

entire Revolutionary era.’’ GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776–1787

345 (Univ. N.C. Press 1969).


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1.

In 1934, at Arbour Hill Military Detention Barracks in Ireland a special

tribunal was meting out summary justice under the terms of an amendment

adopted three years earlier to the Irish Free Constitution of 1922. Perhaps

the only thing uncontroversial about that amendment was that it was

inconsistent with the provisions of the constitution as originally enacted. By

authorizing the exercise of judicial power by persons who were not judges

appointed in the manner provided for by the constitution, it permitted actions

in clear violation of at least two articles clearly set out in the document.

Passed as a Public Safety Act, the amendment could not be mistaken for an

emergency measure, as it conferred upon the executive permanent authority

to exercise its special powers whenever, in its uncontrolled discretion, it

deemed it expedient to do so. Thus the terms of the amendment could be put

into effect during conditions of absolute peace, and under these terms the

tribunals could do just about anything, including sentencing people to death

without a semblance of due process. As the one dissenting judge in State

(Lemmon) v. Ryan pointed out, ‘‘The more one dwells [on its provisions] the

more one is staggered by the contemplation of the range of its operations and

the scope of the matters authorized by [them].’’15 The provisions were,

according to this judge, ‘‘the antithesis of the rule of law,’’ bringing Ireland

alarmingly close to ‘‘the rule of anarchy.’’16

The objection to this constitutional monstrosity was that it was too

radical fairly to be considered anything other than a de facto repeal of the

constitution. As an assault on the basic scheme and principles of that

document, it could only be upheld under the principle of lex posterior,

according to which the recentness of a law establishes its priority over an

earlier law of the same type. This also describes the essential process of

parliamentary supremacy, which is, of course, a very British way of doing

things. And so one might have imagined that rejection of the amendment

could have been a source of satisfaction for Irish judges seeking to affirm

their nationalist bona fides. But only a single justice, Hugh Kennedy, who

was, in fact, a nationalist lawyer and one of the drafters of the constitution,

was so inclined, ‘‘a lone voice,’’ as he was later to be called, ‘‘crying in a

positivistic wilderness.’’17

The majority justices were unmoved by Justice Kennedy’s argument that

any purported amendment repugnant to natural law would necessarily be

unconstitutional and hence null and void. While not denying that the

provision in question would be impossible to justify as an act sanctioned

15 State (Ryan) v. Lemmon, [1935] 170 I.R. 197.

16 Id. at 198.

17 Quoted in Rory O’Connell, Guardians of the Constitution: Unconstitutional Constitutional Norms,

4:48 J. CIVIL LIBERTIES 60. (1999).


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by God, they firmly asserted a judicial incapacity to determine what

constitutional features were fundamental and what were not, which left the

legislature, within the constraints of correct procedure, with total freedom

to amend in any manner it saw fit. In response to the claim that a

constitutional authority to amend provisions had to be distinguished from an

unauthorized power to repeal them, Justice Gerald Fitzgibbon cited the

Twenty-first Amendment to the United States Constitution as evidence for

the fact that amendments need not only add or clarify. Of course, the repeal

of prohibition left the essential character of the U.S. Constitution unchanged,

thus making it a curious example to help legitimate the repeal of due process

in the Irish constitution. But the reference underscores the central point in

the majority’s ruling: distinguishing essential constitutional features from

nonessential ones is ultimately an exercise in imponderables. ‘‘As a provision

is not incorporated into a Constitution unless it is regarded as of fundamental

importance, the distinction between Articles of primary and secondary

importance is difficult to maintain.’’18 Moreover, there was no purpose in

invoking a ‘‘spirit embodied in [the] original Constitution’’ to prevent the

enactment of provisions antagonistic to it. And so, given this view of the

constitution, the Court easily reached the one conclusion that was logically

required by its reasoning: ‘‘In cases where the Legislature professes to

amend the Constitution itself, the only function of the Court is to see that the

proposed Amendment is within the scope of the power granted by the

Constitution, and that the requisite forms insisted upon by the Constitution

shall have been duly observed.’’19

Among the constitutional theorists writing at this time, the one who

would have been least surprised by this result was not an Irishman but a

German—Carl Schmitt. While doubtless preoccupied with his own country’s

rendezvous with constitutional disintegration, he might well have viewed

what was happening in Ireland as confirmation of his controversial ideas

about the inadequacies of the liberal state. That the amendment process in

Ireland culminated in a result he would have applauded—the transfer of all

power to the executive—should not obscure the fact that, in doing so, it

provided a compelling demonstration of what Schmitt saw as the

fundamental flaw at the heart of constitutional liberalism. An amendment

process functioning in total indifference to itself and its own system of

legality was a testament to the blind subordination of substance to form that

was the basis of modern constitutionalism, of which, of course, Weimar was

exhibit A. In such a system, Schmitt wrote, ‘‘a purely formal concept of

law, independent of all content, is conceivable and tolerable.’’20

18 Supra note 15, at 180.

19 Id. at 242.

20 CARL SCHMITT, LEGALITY AND LEGITIMACY 20 (Duke Univ. Press 2004).


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Schmitt might have recognized in the opinions of the prevailing justices

in Ryan echoes of his positivist adversaries in the twenties. He would have

seen the same conflation of parliamentary and popular sovereignty that

could sustain the imagination in visualizing the constituent power whenever

constitutional change emerged from the legislature.21 His own conception

of the sovereign will of the people identified it with certain principles of

substantive law that could, on the one hand, justify the infamous Enabling

Act (Ermachtigungsgesetz) of 1933, by which the Nazis commenced their

descent into pseudolegal hell, and, on the other, resist the dominant

interpretation of article 76, by which the constitution could be amended in

an infinite variety of ways.22 It was a conception whose reach extended to

India, when, in the tumultuous decade of the seventies, Schmitt again

provided theoretical support for both sides in a struggle between dictatorial

power and the judicial forces arrayed against it.

But before departing Ireland, it is important to see how a different court

under a different constitution arrived at a very similar result with regard to

the amendment issue. This Constitution for the Republic of Ireland was

inaugurated with Eamon de Valera’s proclamation that ‘‘If there is one thing

more than any other that is clear and shining through this whole

Constitution, it is the fact that the people are the masters.’’23 It included

an amendment provision that required a popular referendum as the final

step in any alteration of the document. The requirement was satisfied when,

in 1995, the Fourteenth Amendment was adopted, providing for a right to

receive and impart information relating to abortion services lawfully

available outside the state. A bill passed under its authority was submitted

21 This article addresses only the kind of formal constitutional change that occurs through the

amendment process. There is a vast literature that is concerned with constitutional

transformation occurring outside of the officially designated procedures set out in constitutional

provisions. In this regard, the work of Bruce Ackerman has been critically important. His

ongoing We the People project is devoted to the understanding that the people are the source

of all legitimate constitutional change, both formal and informal. Sanford Levinson has drawn

attention to the affinities between Ackerman’s popular sovereignty–based theory of constitu-

tional change and the views of Carl Schmitt. For Levinson, the ‘‘sovereignty-oriented positivism’’

of both of these theorists would lead them (contra Jeffrey Rosen and others) to accept as

legitimate the repeal of the First Amendment as long as this decision emanated from the

authentic voice of the demos. Sanford Levinson, Transitions, 108 YALE L.J. 2215, 2224 (1999).

22As the German scholar Dietrich Conrad has pointed out, the Enabling Act was considered at

the time to be a legitimate use of the amending power, and thus its revolutionary implications in

creating unsupervised dictatorial power should not be seen as an example of emergency power.

Dietrich Conrad, Limitation of Amendment Procedures and the Constituent Power, in INDIAN YEAR

BOOK OF INTERNATIONAL AFFAIRS 387 (1970). It thus bears a resemblance to what happened in

Ireland.

23 Quoted in John A. Murphy, The 1937 Constitution—Some Historical Reflections, in IRELAND’S

EVOLVING CONSTITUTION, 1937–97: COLLECTED ESSAYS 13 (Tim Murphy & Patrick Twomey eds.,

Hart 1998).


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to the Court for constitutional review, and, as part of the challenge to its

legality, the claim was made that the amendment itself was unconstitu-

tional. It was said to be in direct conflict with the Eighth Amendment, which

acknowledges the right to life of the unborn. Imagine for a moment the

passage in the United States of the flag-burning amendment, and the sure

objection that it violated the guarantee of free speech under the First

Amendment, and you have the case that confronted the Irish Court.

Imagine, too, a further claim that, in addition to the allegation concerning

a conflict between two provisions, the newer amendment should not be

allowed to stand because it repudiates principles of natural justice embodied

in the Constitution. This, recall, was the core of Jeffrey Rosen’s effort to put

into play the idea that if the flag amendment were to be adopted it deserved

to be nullified by the Court. A similar effort was undertaken in Ireland, with

greater ease actually, since the natural law commitments of its Constitution

were, in contrast with the United States, much more explicitly set out in the

language of the document. The counsel for the unborn, as they were called,

maintained that the Court could not enforce any provision of a law or

amendment that was contrary to natural law. And so the question was

sharply posed: ‘‘[Is it] permissible for the People to exercise the power of

amendment of the Constitution by way of variation, addition or repeal as

permitted by Article 46 . . .unless such amendment is compatible with the

natural law and existing provisions of the Constitution, and if they purport

to do so, [does] such amendment [have] no effect [?]’’24

The lead opinion by Justice Liam Hamilton was emphatic in its response:

‘‘The Court does not accept this argument.’’25 Without denying either that

there was a conflict between two amendments or that the Abortion

Information Amendment ran afoul of constitutionally significant natural law

precepts, the Court confidently upheld the Fourteenth Amendment as the

legitimate expression of the will of the people. In affirming the supremacy

of popular sovereignty, it effectively left unimpeded the people’s right to

amend the Constitution. As in the earlier Ryan case, it was the sovereign

prerogative that was decisive; the change from one constitution to another,

however significant as a historical transformation to real independence, was

of no consequence with respect to intraconstitutional transformation

through the amendment process. It mattered not at all that the first

transformation was marked by the replacement of parliamentary by popular

sovereignty; ultimately the same reasoning dictated the same positivist result.

To make clear that this result was not an anomaly somehow driven by the

special status of the abortion issue in Irish politics, a trilogy of cases decided

in the late nineties, in which the Court waxed worshipfully at the altar

24Article 26 and the Regulation of Information (Services outside the State for the Termination of

Pregnancies) Bill 1995 [1995] 9 IESC 38.

25 Id. at 38.


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of people power, suggests a deeper cause. If one had to differentiate the

voices in the various judicial opinions delivered in these cases, the only

distinguishing mark would be the decibel level at which the several justices

proclaimed their complete devotion to the demos. Said one: ‘‘There can be no

question of a constitutional amendment properly placed before the people

and approved by them being itself unconstitutional.’’26 More emphatically

still: ‘‘No organ of the State, including this Court, is competent to review or

nullify a decision of the people.’’27 And finally, there is this justice’s quasi-

religious intonation: ‘‘The will of the people as expressed in a referendum

providing for the amendment of the Constitution is sacrosanct and if freely

given, cannot be interfered with. The decision is theirs and theirs alone.’’28

Clear and unambiguous as this is, one should be mindful that the Irish

Constitution begins ‘‘In the name of the Most Holy Trinity, from Whom is all

authority and to Whom, as our final end, all actions both of men and States

must be referred. . . .’’ While there are limits to how seriously to take that

language, or, indeed, the language of any Constitution’s preamble, how are

we to reconcile the democratic positivism of the Court’s decisions with some

of the text in the body of the Constitution, language that was clearly inspired

by the same divine authority? For example, article 41 recognizes the family

as ‘‘a moral institution possessing inalienable and imprescriptible rights,

antecedent and superior to all positive law.’’29 In Ireland being a good

constitutional positivist means showing a proper respect for natural law.

This is not to say that the outcome in the abortion case was wrong, only

that the reasoning in it was instructively deficient. The referendum

requirement in the 1937 Constitution’s amendment provisions enabled the

Court to invoke the constituent authority of the people as cover for its

inability or unwillingness to engage the threshold question of what precisely

an amendment is, or, for that matter, the antecedent question of what a

constitution is. The idea that any duly enacted amendment to the

Constitution carried with it the legitimating aura of sovereign authority

embodied the brilliant obfuscation of a noble fiction. The flaws in this

reasoning would have been recognized by Edmund Burke, who, in his

26 Riordan v. An Taoiseach, [1999] IESC 1, 4, available at www.bailii.org/ie/cases/IESC/1999.

27Hanafin v. Minister of the Environment, [1996] 2 ILRM 61, 183.

28 Id. at 183. Another excellent application of this principle may be found in Sri Lanka. The

Constitution expressly provides for the amendment or repeal of any of its provisions or for the

repeal of the entire Constitution. In the case of major changes the people must affirm them

through a referendum. See in this regard In Re The Thirteenth Amendment to the Constitution

and the Provincial Councils Bill [1987] 2 SRI L. R. 312, where this procedure is specifically

related to the theory of popular sovereignty.

29 For more discussion of the tension between article 41 and popular sovereignty, see

JOHN M. KELLY, THE IRISH CONSTITUTION 1258 (Gerard Hogan & Gerry Whyte eds., Butterworths

2003) (1961).


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‘‘Tract on Popery,’’ opposed an earlier Irish policy by saying: ‘‘No arguments

of policy, reason of state, or preservation of the constitution, can be pleaded

in favour of [the position . . . that laws can derive any authority from their

institution merely and independent of the quality of the subject-matter.]’’30

With the Court’s categorical rejections of implied limits, the morals-laden

commitments of article 41 only serve to remind us that Irish constitutional

development had not offered much to blunt the challenge posed by Carl

Schmitt, to wit: How can one ‘‘put marriage, religion, and private property

solemnly under the protection of the constitution and in the same

constitution offer the legal means for their elimination[?]’’31

If the Irish decisions provided a weak response to Schmitt’s critique of

proceduralism, then insisting that the validity of a formal constitutional

change was conditional on its strict adherence to natural law, as was

argued in the dissent in Ryan or in the right-to-life brief in the abortion-

information case or in the claims made by Rosen in objecting to the proposed

flag amendment, also fails. None of these arguments explains why a right,

even one thought to have a natural endowment, cannot be modified by

‘‘addition or variation.’’ Modifications, after all, are basic to our enjoyment of

rights in civil society. As to the question of ‘‘repeal,’’ there may very well be

grounds for principled resistance to excision of a constitutionally prescribed

guarantee, but the claim on behalf of resistance still would have to be made

based on a demonstration that the result of this more radical change is at

least constitutionally incoherent. By this I mean it would have to show not

just that something important has changed but that the change has, in some

deep sense, disturbed the fundamentals of constitutional identity. To see how

this argument unfolds, we need to go to India.

2.

It is here, in India, where the words of Lincoln’s first inaugural address

take on a special significance. They are words that invite us to be very

particular in what we comprehend by the power to amend, such that the

kind of change that inspired Godel’s hesitation could only properly come

about through extraconstitutional deliverance. ‘‘This country . . . ,’’ Lincoln

said, ‘‘belongs to the people who inhabit it. Whenever they should

grow weary of the existing government, they can exercise their constitu-

tional right of amending it, or their revolutionary right to dismember or

overthrow it.’’32 Lincoln did not explore this distinction between two types

30 Edmund Burke, Tracts Relating to Popery, in I: THE REVOLUTIONARY WAR, II: IRELAND 1765

(R. B. McDowell ed., Oxford Univ. Press 1991).

31 CARL SCHMITT, LEGALITY AND LEGITIMACY 46 (Duke Univ. Press 2004).

32 Abraham Lincoln, First Inaugural Address, in DONALD P. KOMMERS ET AL., AMERICAN

CONSTITUTIONAL LAW: ESSAYS, CASES, AND COMPARATIVE NOTES 1050 (Rowman & Littlefield 2004).


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of constitutive restructuring—amendment and dismemberment; to

elaborate its meaning is to describe the signal achievement of Indian

jurisprudence.

It is an imperfect achievement made possible only by the dictatorial

ambitions of a politician bearing the two most revered names in modern

Indian history. Moreover, it is an achievement that, like the success of Indian

democracy itself, seems somehow counterintuitive. The Indian Constitution,

after all, was designed to accomplish the goal of radical social reconstruction.

To this end, as one of the early justices of the Supreme Court pointed out,

‘‘The Constitution-makers visualized that Parliament would be competent to

make amendments . . . so as to meet the challenge of the problems which

may arise in the course of socio-economic progress and development of the

country.’’33 The provision for amending the document was shaped expressly

to conform with the Jeffersonian idea that each generation should be free to

adapt the Constitution to the conditions of its time. Borrowing also from the

Irish experience, the framers included a section in the Constitution devoted

entirely to Directive Principles of State Policy, a section that came to assume

a place of prominence in subsequent constitutional development that it

never attained in its place of origin. Indeed, the Irish have been a frequent

source of inspiration for many Indians, as is amusingly evident in an Indian

judge’s slightly amended reference to Justice Fitzgibbon’s opinion in the Ryan

case. ‘‘This . . . Eden demi-paradise, this precious stone, set in the silver sea,

this blessed plot, this earth, this realm, this India. If it is not that today, let us

strive to make it so by using law as a flexible instrument of social order.’’34

Add to this effusive embrace of change a legal culture rooted in the

British legal tradition, and it is natural to suppose a hostile Indian reception

to the notion of implied constitutional limits. Thus, it is not surprising for a

judge to declare: ‘‘The power of amendment is in point of quality an adjunct

of sovereignty. If so, it does not admit of any limitations.’’35 What, then,

might explain the surprising receptivity to the idea?

Perhaps the answer lies, at least in part, in judicial practice developed

in constitutional domains at the core of Indian self-understanding, most

prominently the question of secular identity. Thus, in formulating an

appropriate constitutional response to a religious presence that is pervasive

and deep, Indian judges have proceeded along a path that their U.S.

counterparts have studiously avoided. They have applied an ‘‘essentials of

religion’’ test to isolate what is integral to religion from what is not, so that

the constitutional goal of social reform will not be impeded by religious

33 Justice P.B. Gajendragadkar as quoted in Kesavananda Bharati v. State of Kerala, 1973

SC 1461, 1492.

34 Id. at 2027.

35 Id. at 1495.


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practices—for example, polygamy—erroneously claiming sanctified theolo-

gical significance.36 It may be that this defining feature of Indian church/

state jurisprudence allows for greater openness to a similar test for

amendments, the sort of test that was so categorically rejected by the

Irish Court. At least it helps to understand why a judge might conclude that

the Constitution cannot legally be used to destroy itself.37 Or why a judge

might argue: ‘‘[Our Constitution] is based on a social philosophy and

every social philosophy like every religion has two main features, namely,

basic and circumstantial. The former remains but the latter is subject to

change.’’38

But how to determine what remains and what is subject to change? In

its wrestling with the amendment issue, the Indian Supreme Court has

struggled mightily with this perplexity. On the one hand, its task has been

less difficult than confronting the challenge of religion, where the Court’s

authority to make this distinction was always more dubiously asserted; on

the other hand, its effort has been complicated by the fact that the key

cases testing the limits of the amendment power have directly implicated

the justices’ own institutional self-interest. A very brief outline of the

progression of these cases should be sufficient to pursue the logic of

the Court’s rather weakly theorized, if boldly formulated, rationale for its

chosen path.

Unlike the episodic character of the Irish experience, India’s history with

the amendment problem presents a compelling narrative. Indeed, there are

at least two stories one can tell, the first concerning a decades-long political

give and take over the place of private property in India, and the second

featuring a protracted struggle by the Supreme Court to establish its

credibility and independence in the face of repeated attempts to diminish its

standing as a significant force in Indian politics. These stories are tightly

entwined and are distinguishable only by the theme one chooses to

emphasize. In both accounts they are dominated by the looming presence of

Indira Gandhi.

The use of the amendment process to insulate certain issues from judicial

oversight began in the early days of the republic, long before Mrs. Gandhi’s

ascension to power. In a 1951 decision (and again in 1965), the Supreme

Court upheld the plenary power of Parliament to amend the Constitution

36 I have discussed this development in detail in GARY JEFFREY JACOBSOHN, THE WHEEL OF LAW:

INDIA’S SECULARISM IN COMPARATIVE CONSTITUTIONAL CONTEXT (Princeton Univ. Press, 2003). Because

religion in India is so deeply embedded in the existing social structure, indifference to the

substance of religious belief is a much costlier indulgence than it is in places where the spiritual

and temporal are not so tightly entwined.

37 As was said in Minerva Mills Ltd. V. Union of India, AIR 1980 SC 1789 (hereafter Minerva

Mills), ‘‘[t]he power to destroy is not a power to amend.’’ Minerva Mills at 1798.

38 Kesavananda Bharati v. State of Kerala, supra note 33, at 1624.


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over the claim that the process had been used to deprive landowners of

fundamental property rights guaranteed under the document.39 These

rulings stood up rather well until 1967 and the landmark decision of Golak

Nath v. State of Punjab,40 in which a divided Court announced that duly

enacted amendments could not be permitted to render a constitutional right

unenforceable. It was, as one commentator has described it, a case that

‘‘began the great war . . . over parliamentary versus judicial supremacy.’’41

Technically, the decision did not invalidate the amendments in question,

as the Court issued a prospective judgment essentially putting Parliament

on notice that the days of its amendatory interference with fundamental

rights were over. But the intense political reaction to the Court’s move left

little doubt that something very important had occurred.

The opinions in the case were noteworthy more for having established a

foundation for debating the meaning of constitutional change than for the

quality of the judges’ own initial contributions, which were, for the most

part, underdeveloped. The main opinion by the chief justice introduced the

critical question of what the word ‘‘amend’’ actually means; his preference

for a limited understanding must be seen in connection with his main point,

which was that ‘‘fundamental rights are given a transcendental position

under our Constitution and are kept beyond the reach of Parliament.’’42

Not surprisingly, his natural rights claim—he called them ‘‘primordial

rights’’—provoked some Holmesian grumblings among his dissenting

colleagues, one of them quoting the American justice to the effect that

‘‘[t]he Constitution is an experiment as all life is an experiment.’’43 No

reference was made to Justice Hugo Black’s memorable denunciation of

natural rights as an ‘‘incongruous excrescence upon the Constitution,’’44

although when viewed comparatively it is clear that, however suspect may

be its descriptive value in the United States, this unappealing appellation has

more resonance in India.

This became evident in the 1973 case Kesavananda Bharati v. State of

Kerala, arguably India’s most important constitutional decision. Golak Nath

had provided Indira Gandhi with a splendid issue for a populist campaign

39 Shankari Prasad Deo v. Union of India 1951 (3) SCR 106; Sajjan Singh v. State of Rajasthan

1965 (1) SCR 933. The use of the amendment process to preclude judicial review of particular

issues (mainly property) began under Mrs. Gandhi’s father, Prime Minister Jawaharlal Nehru,

although his efforts never aroused the same concerns as did his daughter’s in subsequent years.

40 L. C. Golak Nath and Others v. State of Punjab AIR 1967 SC 1643.

41 Granville Austin, Working a Democratic Constitution: The Indian Experience 198 (Oxford Univ.

Press, 1999).

42 Id. at 1656.

43 Id. at 1736.

44Adamson v. California, 332 U.S. 46, 75 (1947).


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that ended in electoral triumph in 1971.45 Her substantial victory quickly

translated into passage of no less than four constitutional amendments, one

of which—the Twenty-fourth—explicitly overturned the earlier decision on

fundamental rights, extending to Parliament the authority to adopt

amendments that were immune from judicial review. War with Pakistan

precipitated a declaration of presidential emergency and subsequent nation-

alization, which, in turn, led to the litigation that ended in the landmark

judgment in Kesavananda. Its massive content (approximately 800 pages) and

numerous crosscutting opinions are not conducive to easy recapitulation.

In essence the Court—seven of the thirteen participating judges—affirmed

the authority of Parliament to amend constitutional provisions involving

fundamental rights, while rejecting its authority to place statutes enacted

to implement the Constitution’s Directive Principles beyond the power of

judicial review. It thus reversed Golak Nath but narrowly asserted its own

authority to invalidate a constitutional amendment that was in defiance of

the ‘‘basic structure’’ of the Indian Constitution. While relenting on its

authority to designate specific provisions as immune from constitutional

change, the majority invested the Court with a broader supervisory jurisdic-

tion over the fundamental meaning of the document.46 In the fashion of

Marbury v. Madison, the Court avoided a direct confrontation with the

government, yet appreciably strengthened its powers in anticipation of battles

ahead.

And so the era of natural rights in India was short-lived. Should any

legitimacy attach to the idea of implied limits to the amendment power, it

would not be found in natural rights arguments. While there were differences

on the Court over epistemological questions concerning such rights, a broad

consensus emerged that ‘‘Fundamental rights . . . are given by the Constitu-

tion, and, therefore, they can be abridged or taken away by the . . . amending

process of the Constitution itself.’’47 The judges were mindful of how

arguments from natural rights had been employed elsewhere—notably in the

United States—to impede efforts to achieve greater social and economic

45As noted by Granville Austin, the Court’s decision ‘‘was a masterpiece of unintentional

timing, for it gave Mrs. Gandhi a cause and an enemy in her quest for renewed power.’’ Supra

note 41, at 198.

46 The essence of the Court’s ruling is in line with William Harris’s theoretical reflections on

constitutional change. ‘‘Even for important existing features it would seem that rather than

ranging over the constitutional scheme to pick out elements that might arguably be more

fundamental in the hierarchy of values, it would be more advisable to develop essential

principles that would guide a choice as to whether a particular Constitutional change were

substantively invalid. That is, a Constitutional provision would be fundamental only in terms of

some articulated political theory that makes sense of the whole Constitution.’’ WILLIAM HARRIS,

THE INTERPRETABLE CONSTITUTION 188 (Johns Hopkins Univ. Press 1993).



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equality, and they seemed determined to avoid the potential damage to

constitutional values associated with the ambiguity surrounding these rights.

A characteristically Indian objection expressed what is, for better or worse, a

reality of our time: ‘‘Natural law has been a sort of religion with many

political and constitutional thinkers. But it has never believed in a single

Godhead. It has a perpetually growing pantheon. . . .The pantheon is not a

heaven of peace. Its gods are locked in internecine conflict.’’48

Notice that this rejection of a rights-based bar to first-order constitutional

change did not culminate in acceptance of the government’s extraordinary

argument to the Court that Parliament could do anything it wanted through

the amendment power, no matter how revolutionary or destructive. To be

sure, the ghost of Oliver Wendell Holmes returned—and with a vengeance—

but only to a small minority of the justices, among whom Justice Y.V.

Chandrachud was most expansive: ‘‘If the people acting through the

Parliament want to put the Crown of a King on a head they like, or if you

please, on a head they dislike . . . let them have that liberty. . . . [As Justice

Holmes said], ‘[W]hen the people . . .want to do something I can’t find

anything in the Constitution expressly forbidding them to do it, I say,

whether I like it or not: God-dammit it, let’em do it.’’49 But these sentiments

ultimately lost out to the proponents of ‘‘basic structure,’’ a doctrine that

might not have made it very far beyond the ruling in this case had it not

been for the overreaching of the Indian prime minister.

On June 12, 1975, a high court judge in Mrs. Gandhi’s electoral

constituency upheld charges against her for the crime of electoral fraud. Two

weeks later, faced with the possibility of removal from office, she introduced

India’s first domestically driven emergency regime, which quickly evolved

into a harsh and unremitting dictatorship. Among its first acts were a series

of constitutional amendments that were, shall we say, unusual. One of them,

the Thirty-ninth Amendment, prevented any judicial inquiry into the

election of the prime minister. As one noted Indian legal scholar remarked,

‘‘Nowhere in the history of mankind has the power to amend a Constitution

thus been used.’’50 Another, the Thirty-eighth, shielded from judicial review

any laws adopted during the emergency that might conceivably impinge

upon fundamental rights. Gandhi’s claim was Schmittian in the extreme; in

essence, the constituent power, as an expression of the sovereign will of

the people, was all-embracing and at once judicial, executive, and legislative.

It was such an extravagant claim that it accomplished what all previous

48 Id. at 2006.

49 Id. at 2044. A similar sentiment appears in the opinion of Justice S.M. Sikri: ‘‘[S]hort of repeal

of the Constitution, any form of Government with no freedom for the citizens can be set up by

Parliament by exercising its powers under Article 368.’’ Id. at 1490.

50 UPENDRA BAXI, COURAGE CRAFT AND CONTENTION: THE INDIAN SUPREME COURT IN THE EIGHTIES

70 (N. M. Tripathi Priv. Ltd. 1985).


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debate over property-related amendments had failed to do—establish the

legitimacy of the unconstitutional constitutional amendment.

This was too much even for the aforementioned Holmesian justice, who

perhaps experienced an epiphany, in the face of these events, concluding

that the Constitution could indeed be subverted by revolutionary methods,

and that constitutional provisions should not, after all, be the vehicle

for such change. While Mrs. Gandhi’s election was prudently upheld, the

Court decisively repudiated the Thirty-eighth and Thirty-ninth Amendments.

‘‘The common man’s sense of justice sustains democracies,’’51 wrote another

of the prime minister’s expected judicial supporters, and the outrage provoked

by these travesties must, he felt, be given due regard in determining the

attributes of basic structure. In particular, these provisions were a blatant

negation of the right of equality and were in sharp contravention of the most

basic postulate of the Constitution. Hence, following Kesavananda, they could

not stand.

Of course, one could question just how meaningful these developments

were in light of the unusual circumstances that brought them about. That is

why the last of the cases in this brief summary—involving a government

takeover of a failing business—is so important. In 1980, the Court decided

Minerva Mills, Ltd. v. Union of India,52 better known as the ‘‘sick textiles’’ case,

in which parts of yet another amendment, the Forty-second, were invalidated

in a ringing affirmation of the basic structure doctrine. The amendment

represented Mrs. Gandhi’s last strike at the Court, including the provocative

declaration that ‘‘No amendment . . . shall be called into question in any court

on any ground.’’53 Again it was left to Justice Chandrachud to articulate

what he called ‘‘the theme song of Kesavananda,’’ for which he was now fully

prepared to become a part of the chorus. ‘‘Amend as you may even the

solemn document which the founding fathers have committed to your care,

for you know best the needs of your generation. But, the Constitution is a

precious heritage; therefore you cannot destroy its identity.’’54

3.

The legal scholar Frederick Schauer has asked: ‘‘What makes a con-

stitution constitutional?’’ ‘‘Nothing,’’ he answered, ‘‘nor does or can

anything make a constitution unconstitutional.’’55 The Indian cases provide

51 Indira Gandhi v. Raj Narain, AIR 1975 SC 2299, 2469.

52Minerva Mills, supra note 37, at 1789.

53 Text of the Forty-second Amendment.

54Minerva Mills, supra note 37, at 1798.

55 Frederick Schauer, Amending the Presuppositions of a Constitution, in RESPONDING TO IMPERFECTION:

THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT 145 (Sanford Levinson ed., Princeton

Univ. Press 1995).


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another answer, even if much of the jurisprudence that emerged was forged

in the extreme circumstances of emergency power, and much of what was

innovative about the line of cases flowed from the Court’s own institutional

needs. One lesson to draw from them might be to follow the Brazilian

example and preclude the enactment of constitutional amendments during

periods of emergency.56 But surely more can be learned from an account of

this legal history; moreover, the rather extreme conditions that provided the

context for what judicially transpired are, in fact, useful in clarifying the

stakes in the debate over implied limits.

Hence we should not be surprised to learn that it was the German

experience that offered the Indian judges guidance in their extended parrying

of Indira Gandhi.57 She, of course, had a lot to learn from that experience as

well, if, alas, from an earlier decade. But both the judges and the prime

minister could find in the person of Carl Schmitt a source of ideas for their

conflicting agendas, for that enigmatic theorist is at once the guru of

emergency power and the proponent of the notion that there are

fundamental principles limiting the amendment power. Indeed, his argu-

ment that the amendment power was not an expression or reincarnation of

the original constituent power, and thus limited under its original mandate,

was incorporated into the jurisprudence of the Basic Law of the Federal

Republic. While never actually invalidating a constitutional amendment, the

postwar German Court has declared such an act conceptually possible and

has expressly invoked the nation’s recent past to affirm that never again

would formal legal means be used to legalize a totalitarian regime.58

56 The Constitution of Brazil may not be amended during a state or federal intervention, defense,

or siege. C.F. Art. 60, section 1. It is popularly viewed as a mechanism of self-preservation in a

country with a history of authoritarian interventions in the constitutional text.

57 Instrumental in the education of Indian judges regarding the German experience was the

work of Dietrich Conrad, a German scholar of Indian politics and law. See, e.g., Dietrich Conrad,

Limitation of Amendment Procedures and the Constituent Power, 15–16 THE INDIAN YEAR BOOK OF

INTERNATIONAL AFFAIRS (1970). Conrad’s work was cited by Indian justices in several of the

decisions discussed in this article.

58 The Southwest Case, BverfGE 1, 14 (1951): ‘‘That a constitutional provision itself may be null

and void, is not conceptually impossible just because it is a part of the constitution. There are

constitutional provisions that are so fundamental and to such an extent an expression of a law

that precedes even the constitution that they also bind the framer of the constitution, and other

constitutional provisions that do not rank so high may be null and void, because they

contravene those principles. . . . ’’ Privacy of Communications Case (Klass Case), BverfGE 30, 1

(1970): ‘‘The purpose of Article 79, paragraph 3, as a check on the legislator’s amending the

Constitution is to prevent the abolition of the substance or basis of the existing constitutional

order, by formal legal means of amendment . . . and abuse of the Constitution to legalize a

totalitarian regime.’’ Fundamental constitutional alteration is not prohibited as long as it meets

the criterion of coherence. ‘‘Restrictions on the legislator’s amending the Constitution . . .must

not, however, prevent the legislator from modifying by constitutional amendment even basic

constitutional principles in a system-immanent manner.’’


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If proximity to the abyss has a way of concentrating the mind on the

essentials of constitutionalism, judicial enforcement of implied limits to the

amendment power should not rest solely on reasons fashioned for the dire

circumstances of the worst case. For Schmitt, it was the doctrine of popular

sovereignty traceable to the French Revolution that animated his views on

the subject, just as it did his defense of executive dictatorship.59 Perhaps it

was the tragically induced awareness of the multiple ends the doctrine could

serve that led the German Court to emphasize, as a basis for the conceptual

possibility it had countenanced, the further idea of preserving the ‘‘inner

unity’’ of the Constitution. Thus a constitutional amendment could be

subject to nullification to the extent that it was responsible for transforming

the document to which it was added into something fundamentally

incoherent.

Of the raft of reasons adduced by the Indian Court in analyzing the

unconstitutional amendment, the one that stands out is a version of the

coherence requirement—the need to preserve the Constitution’s identity. If

anything, however, it is a more demanding criterion than the German

test. Thus the incongruities and inconsistencies that could lead to a finding of

constitutional incoherence might only mean that the document’s identity has

been obscured in a manner that seemingly casts doubt on its fundamental

character and commitments. Also, the exigencies of constitution making

often lead to an original constitution’s incoherence, in the sense that

necessary compromises produce contradictions affecting its ‘‘inner unity’’

even before any subsequent amending hand is laid upon it. That is certainly

the U.S. story, and in its finest moment article 5 served the nation well by

enabling its fundamental law to begin the process of working itself pure.

Reforming a constitution is, as Walter F. Murphy has pointed out,

different from re-forming a constitution.60 The latter, one might say, extends

beyond incoherence and implicates identity. Aristotle, in speaking of

the polis, asked, ‘‘On what principles ought we to say that a state

has retained its identity, or, conversely, that it has lost its identity and

become a different State?’’61 His answer was that a polis’s identity

changes when the constitution (referring to more than just a document)

changes as the result of a disruption in its essential commitments, much as a

chorus is a different chorus when it appears in a tragedy rather than a

59 Schmitt’s thoughts on popular sovereignty and constitutional change are well treated in Peter

C. CALDWELL, POPULAR SOVEREIGNTY AND THE CRISIS OF GERMAN CONSTITUTIONAL LAW: THE THEORY AND

PRACTICE OF WEIMAR CONSTITUTIONALISM (Duke Univ. Press 1997).

60Walter F. Murphy, Slaughter-House, Civil Right, and Limits on Constitutional Change,

32 AM. J. JURIS. 1, 17 (1987). For Murphy, the addition of the Thirteenth and Fourteenth

Amendments provided the Constitution with the intellectual coherence it had previously lacked,

and in doing so enhanced, rather than undermined, the integrity of its core principles.

61 ARISTOTLE, THE POLITICS OF ARISTOTLE 98 (Ernest Barker trans., Oxford Univ. Press 1962).


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comedy.62 According to the Oxford English Dictionary, to speak of identity is

to refer to that condition or fact that makes something unique, especially as a

continuous unchanging property throughout its existence. This follows the

account of the eighteenth-century Scottish philosopher Thomas Reid and his

observation that ‘‘Continued uninterrupted existence is . . .necessarily

implied in identity.’’63 As it has evolved in Indian jurisprudence, the

meaning of a constitutional amendment has essentially conformed to these

definitions of identity. Thus in Kesavananda, Justice H.R. Khanna, the author

of the decision’s most important opinion, wrote: ‘‘The word ‘amendment’

postulates that the old constitution survives without loss of its identity despite

the change and continues even though it has been subjected to alterations.’’64

In Minerva Mills, Justice P.N. Bhagwati, one of the last holdouts against the

idea of implied limits, argued: ‘‘If by constitutional amendment, Parliament

were granted unlimited power of amendment, it would cease to be an

authority under the Constitution, but would become supreme over it, because

it would have power to alter the entire Constitution including its basic

structure and even to put an end to it by totally changing its identity.’’65

The question of constitutional identity is, of course, much more easily

asserted than enforced. Given the exceedingly high probability that any such

assertion will be vigorously contested, judges are understandably reluctant

to enforce it. This is because ‘‘[i]solating the mechanism that makes

invocations of identity . . . persuasive would take us into deep philosophical

waters.’’66 While such an exercise could prove quite beneficial, the safer

judicial route would be to avoid these waters entirely. Thus in the U.S. case

Coleman v. Miller Justice Hugo Black said of the article 5 process that it ‘‘is

‘political’ in its entirety, from submission until an amendment becomes part

of the Constitution, and is not subject to judicial guidance, control or

interference at any point.’’67 The judicial practice of invoking this ‘‘political

question’’ doctrine, to avoid difficult constitutional questions, began in

Luther v. Borden,68 which was in essence a case of political identity in which

the Supreme Court refused to say what it was that the republican guaranty

clause (article 4, section 4) guaranteed. The same jurisprudential choice to

62 Id. at 99.

63 Quoted in Udo Thiel, Individuation, in 1 CAMBRIDGE HISTORY OF SEVENTEENTH CENTURY PHILOSOPHY

253 (Daniel Garber & Michael Ayers eds., Cambridge Univ. Press 1998).



66 Christopher Eisgruber, Is the Supreme Court An Educative Institution? 67 N.Y.U.L. REV. 962, 971

(1992).

67 Coleman v. Miller, 307 U.S. 433, 459 (1939).

68 Luther v. Borden, 48 U.S. 1 (1849).


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avoid the question of identity underlies the unwillingness to find implied

limits to formal constitutional change.69 When, several years later, the

abolitionist senator from Massachusetts Charles Sumner suggested that

republican identity was incompatible with slavery, and hence the federal

government should do what the Constitution commanded and remove those

governments that supported it, his arguments were easily defeated by

John C. Calhoun and the logic of Luther v. Borden.

Very different was the result in India when, in 1994, the Supreme Court

upheld the authority of the central government to dismiss the elected

governments in three states for their complicity in undermining the polity’s

commitment to secularism.70 The provision under which this was done

had been modeled after the U.S. guaranty clause. As a prominent delegate at

the constituent assembly said, ‘‘In putting in that Article [for dismissing

state governments], we are merely following the example of the classical or

model federation of America.’’71 The Court’s main concern was Indian

constitutional identity, and so, following Kesavananda, secularism was

declared essential to the unchangeable basic structure of the Constitution.

But here, as in the earlier case, the Court’s boldness in defending against

the assault on constitutional foundations was not matched by an effort to

articulate a theory by which the properties of a protected domain of identity

might be known. Moreover, the determination to preserve this domain begs

the question of why, as an axiom of constitutional policy, this ‘‘precious

heritage’’ must be shielded from destruction.72 ‘‘[T]o say your Constitution is

69At the state level there has occasionally been less reluctance to engage such issues. In

Downs v. City of Birmingham, 198 Southern Reporter 231 (1940), the SupremeCourt of Alabama

held that an amendment to the State Constitution must be consistent with a republican form of

government as required by the federal Constitution. Some states (California, Delaware)

distinguish in their constitutions between ‘‘amendment’’ and ‘‘revision,’’ the latter intended to

apply to pervasive changes in constitutional arrangements. The Spanish Constitution of 1978 has

a similar two-tier amending system. For a comparative analysis of the various approaches to

constitutional amendment, see Elai Katz, On Amending Constitutions: The Legality and Legitimacy of

Constitutional Entrenchment, 29 COLUM. J. L. & SOC. PROBLEMS 251 (1996). Katz argues that while

everything in a constitution should be amendable, certain clauses should be harder to amend

than others.

70 S. R. Bommai v. Union of India, 3 SC 1 (1994). The case is discussed at length in GARY J.

JACOBSOHN, THE WHEEL OF LAW 125–160 (Princeton Univ. Press 2003).

71Constituent Assembly Debates, 7 Official Reports 150 (Delhi: Lok Sabha Secretariat). The

delegate, Alladi Krishnaswami, was a future Supreme Court justice.

72 Thus the judge in Kesavananda who raised the following question did not get a satisfactory

answer. ‘‘And what is the sacredness about the basic structure of the Constitution? Take the

republican form of government, the supposed cornerstone of the whole structure. Has mankind,

after wandering through history, made a final and unalterable verdict that it is in the best form

of government? Does not history show that mankind has changed its opinion from generation to

generation?’’ Kesavananda Bharati v. State of Kerala, supra note 33, at 1948.


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what it has been, is no sufficient defense for those, who say it is a bad

Constitution.’’73

These last words belong to Edmund Burke, whose reflections on the

dramatic changes in one country have unfortunately obscured his decades of

engagement in the transformation of others. In South Asia, where some said

he stubbornly—others prefer tenaciously—championed the rights of

Indians against the numerous depredations of the British Empire, he is

given more regard as a visionary thinker, albeit one whose gaze was never

fully diverted from the past.74 There are approving references in the

Kesavananda ruling to Burke’s famous injunction about the need to

accommodate change in order to conserve what is truly important.75 But in

the development of their ideas on constitutional identity and basic structure,

the Indian justices could have gotten more mileage from one whose unique

Irish perspective led him to condemn the injustices done to their ancestors.76

Indeed, Burke’s immersion in the struggles of Ireland and India had a lot

to do with what I would characterize as his dual track understanding

of constitutional identity. As to the first, I mean that there are, at the most

basic level, certain attributes of the rule of law that are the necessary

condition for generic constitutional governance. What the renowned

American legal philosopher, Lon Fuller, called the ‘‘inner morality of

law’’77 is a fair representation of Burke’s unequivocal denial of constitutional

identity to a rulership that fails to meet its minimum requirements. These are

the requirements of due process in the Magna Carta sense, not the more

contemporary version of substantive guarantees. In fact, in arguing for Fox’s

East India Bill, Burke said it was ‘‘intended to inform the Magna Carta of

Hindostan.’’78 To this end his impeachment prosecution of Warren Hastings

73 Edmund Burke, Speech On a Motion made in the House of Commons, the 7th of May 1782, for a

Committee to inquire into the state of the Representation of the Commons in Parliament, in

ON EMPIRE, LIBERTY, AND REFORM: SPEECHES AND LETTERS OF EDMUND BURKE 275 (David Bromwich ed.,

Yale Univ. Press 2000).

74 In fact, not only in South Asia has he been so viewed. Thus Harold Laski pointed out that

‘‘[on] Ireland, America, and India, he [Burke] was at every point upon the side of the future. . . .’’

Quoted in UDAY SINGH MEHTA, LIBERALISM AND EMPIRE: A STUDY IN NINETEENTH-CENTURY BRITISH

POLITICAL THOUGHT 155 (Univ. Chicago Press 1999).

75 For example, Justice Khanna quoting Burke: ‘‘A state without the means of some change is

without the means of its own conservation. Without such means it might even risk the laws of

that part of the Constitution which it wished the most religiously to preserve.’’ Kesavananda

Bharati v. State of Kerala, supra note 33, at 1847.

76 The best study of how Burke’s Irish roots shaped his political ideas is CONOR CRUISE O’BRIEN, THE

GREAT MELODY: A THEMATIC BIOGRAPHY OF EDMUND BURKE (Univ. Chicago Press 1992).

77 LON FULLER, THE MORALITY OF LAW 42 (Yale Univ. Press 1964).

78 Edmund Burke, Speech on Fox’s East India Bill, in ON EMPIRE, LIBERTY, AND REFORM, supra note

73, at 292 (David Bromwich ed., Yale Univ. Press 2000).


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for the latter’s maladministration of India was premised on the idea that

‘‘The laws of morality are the same everywhere.’’79 Whatever the identity of

a governance that does not provide Magna Carta–like liberties, it is not

constitutional. This did not mandate a particular form of government, as it

did for the theoreticians of natural rights whom Burke often scolded, but it

did mean that to be properly identified for what it was, a constitution would

have to be able, in Fuller’s words, to ‘‘save us from the abyss.’’80 It is unlikely

that Indira Gandhi’s amendments or, for that matter, the Seventeenth

Amendment to the Irish Free Constitution, would have satisfied Burke’s

requirement.

One of the justices in the Indira Gandhi case, in speaking of the principles

of the rule of law, pointed out that they ‘‘must vary from country to country

depending on the provisions of [the] constitution.’’81 Burke’s second track

concerns this variability, which is about the identity of a particular

constitution. In his speech on the reform of representation, delivered just

one year before his better known speech on the East India Bill, Burke

explained why he favored the idea of the prescriptive constitution:

‘‘Because,’’ he said, ‘‘a nation is not an idea of local extent, but is an idea

of continuity, which extends in time as well as in numbers, and in space.

And this is a choice not of one day, or one set of people, not a tumultuary

and giddy choice; it is a deliberate election of ages and generations; it is a

Constitution . . .made by the peculiar circumstances, occasions, tempers,

dispositions, and moral, civil, and social habitudes of the people, which

disclose themselves only in a long space of time. It is a vestment, which

accommodates itself to the body.’’82

It is tempting, though mistaken, to think of Burke as a precursor of

modern moral relativism, even if excerpts like this illuminate why some have

held that view. His emphasis on particularities and prescription—that is, the

constitutional principle of inheritance—and on the constitution as some-

thing that evolves to fit the circumstances and habits of a people, is surely

suggestive of a moral sensibility strongly deferential to entrenched cultural

norms. But the deference was not unqualified, as illustrated in Burke’s

rejection of Hastings’s main argument for his morally questionable actions in

India. Hastings had framed a defense of ‘‘geographical morality,’’ which held

that whatever happened in India was compatible with local customs and,

therefore, could not be judged by external standards. Burke was categorical

in rejecting this moral perspective, arguing in response that the governance

79 Quoted in FREDERICK G. WHELAN, EDMUND BURKE IN INDIA: POLITICAL MORALITY AND EMPIRE 281

(Univ. Pittsburgh Press 1996).

80 FULLER, supra note 77, at 44.




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of Indians had to respect the same universal laws of right conduct

that applied to Englishmen. Necessary, for Burke, was a prudential

balancing of the universal and the particular. ‘‘The foundations of

government [are . . . in the constitution] laid . . . in political convenience and

in human nature; either as that nature is universal, or as it is modified by

local habits.’’83

While there were preconditions for a constitution to exist, the nation

as an ‘‘idea of continuity’’ meant that constitutions had to be viewed as

embodiments of unique histories and circumstances. ‘‘I never was wild

enough to conceive that one method would serve for the whole; that the

natives of Hindostan and those of Virginia could be ordered in the same

manner. . . .’’84 One would never mistake the constitutional identities of

these wildly divergent peoples, just as one would not confuse the aesthetic

identities of an ornate eighteenth-century French writing table and its

minimalist twentieth-century Finnish counterpart.85 The accommodation of

the vestment to the body implied a tolerance for diverse practices; abstract

theory could not dictate constitutional form or identity. One can debate

whether Burke was too permissive in the span of constitutional variability he

imagined as compatible with legitimate rule. The point is that the Burkean

understanding of constitutions as artifacts of time and experience supplies

the necessary background assumption for Justice Khanna’s critically

important criterion for the legitimacy of an amendment: that the old

constitution survive without loss of its identity.

Survival depends on successfully pursuing the inquiry into constitutional

essentials. In the philosophical literature the relationship between survival

83Quoted in Francis Canavan, Prescription of Government, in DANIEL RITCHIE, EDMUND BURKE:

APPRAISALS & APPLICATIONS 259 (Transaction Publishers 1990). One of the most thoughtful

accounts of Burke’s views on India is contained in Uday Mehta’s LIBERALISM AND EMPIRE, in which

Burke is distinguished from such theorists as John Stuart Mill on the basis of his—Burke’s—

preference for the local over the universal, such that it led him to see, in a way that was not

evident to these other thinkers, the abuses of empire. Mehta’s argument is very persuasive,

although he overstates Burke’s renunciation of universal principles. Thus it is incomplete to say,

‘‘For Burke . . . obligations and the norms of justice spring from the local and the conventional.’’

Supra note 74, at 176. A similar account, highlighting Burke’s aesthetic theory, may be found in

LUKE GIBBONS, EDMUND BURKE AND IRELAND: AESTHETICS, POLITICS, AND THE COLONIAL SUBLIME 166–180

(Cambridge Univ. Press 2003). ‘‘Geographical morality’’ is present in some of the sentiments

expressed in Kesavananda. For example: ‘‘Law varies according to the requirements of time and

place. Justice thus becomes a relative concept varying from society to society according to the

social milieu and economic conditions prevailing therein.’’ Kesavananda Bharati v. State of

Kerala, supra note 33, at 1735.

84 Edmund Burke, Letter to the Sheriffs of Bristol, in 2 THE WORKS OF EDMUND BURKE 119 (Little,

Brown 1839).

85 Yet just as the presence of a horizontal surface assures the viewer that the latter contrast

pertains to the category of tables, the constitutional observer will have to be satisfied that

analogous generic criteria establish a common basis for comparing the two bodies politic.


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and identity is a much-contested subject;86 according to one account,

‘‘[W]hat matters in survival is mental continuity and connectedness . . .

What matters in survival is identity.’’87 Accordingly, ‘‘Change should

be gradual rather than sudden, and (at least in some respects) there

should not be too much change overall.’’88 Although written in reference to

personal identity, a similar idea may be said to give meaning to identity at

the constitutional level. In Indian jurisprudence this can lead, as in Justice

Khanna’s opinion, to a basic structure and in Burke to the constitutional

principle of inheritance, more familiarly known as prescription. Burke, as

Francis P. Canavan has noted, ‘‘supposes that [the constitution] is a

contingent part of the moral order and for that very reason imposes an

obligation that overrides the alleged right of each successive generation to

scrap the existing constitution and frame a new one for itself.’’89 But as the

Indian, Irish, and American controversies that so defined Burke’s political

career make absolutely clear, prescription is not a synonym for the status

quo; rather ‘‘it points toward a reconciliation of permanence and change.’’90

Indeed, the commitment to established institutions (including the rule of law)

may require—as was true in these three cases—a quite energetic program of

reform that belies Burke’s reputation for stodgy conservatism. Burke often

distinguished between reform (healthy) and innovation (problematic), the

latter having more to do with change that is disconnected from principles

engrained in the prescriptive constitution.

Burke’s distinction parallels the amendment/revision antinomy that,

explicitly or implicitly, establishes substantive limits to constitutional

change through the amendment process. India, for example, has embraced

secularism as a critical and essential component of its constitutional identity,

an embrace made apparent only partially by its formal constitutional

codification. More significant is the historical backdrop to that codification,

86 See, for example, David Lewis, Survival and Identity, in THE IDENTITIES OF PERSONS (Amelie

Oksenberg Rorty ed., Univ. Calif. Press 1976); and Derek Parfit, Personal Identity, 80 PHIL. REV. 3

(1971).

87 Lewis, supra note 86, at 17–18. Similarly, Thomas Reid wrote: ‘‘[Identity] admits of a great

change of the subject, providing the change be gradual; sometimes even of a total change. And

the changes made . . . consistent with identity differ from those that are thought to destroy it. . . .’’

From ESSAYS ON THE INTELLECTUAL POWERS OF MAN (1785), excerpted in PERSONAL IDENTITY 51

(Raymond Martin & John Barresi eds., Blackwell 2003).

88 Parfit, supra note 86, at 17.

89 FRANCIS P. CANAVAN, THE POLITICAL REASON OF EDMUND BURKE 134 (Duke Univ. Press, 1960). The

same thought is conveyed in Gerald W. Chapman’s depiction of Burke’s view of the nation as ‘‘a

‘moral essence’—a cultural personality in time.’’ GERALD W. CHAPMAN, EDMUND BURKE AND THE

PRACTICAL IMAGINATION 90 (Harvard Univ. Press 1967). Accordingly, constitutional change is

acceptable and desirable to the extent that it respects what is essential to national continuity.

90 Id. at 166.


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which establishes the prescriptive force of the commitments included in the

document. Thus the principle of secularism may be understood as an

element of the basic structure of the Constitution, and, as such, may not be

subject to amendment, although a specific provision intended to configure

secular relations in a particular way may be changed within the constraints

of the broader principle. The variability of changing conditions may

necessitate modifications in the structure and design of particular institu-

tions, as well as in the manner in which these institutions interact with one

another and with other agents, but the transient character of formal

arrangements must reflect the larger purposes and principles that are the

continuous and unalterable thread of constitutional identity. This is a point

well made by the astute scholar of Burke Gerald Chapman who points out

that the House of Commons, for example, need not as a matter of prescriptive

requirement assume any particular form, even though the basis for the

existence of the House ‘‘authorizes its permanence as a principle in the

constitution.’’91

And so we might think of an amendment as a new chapter in an ongoing

constitutional story. How well it fits the existing narrative will be a factor in

assessing its quality; it may, like the Fourteenth Amendment in Ireland or

the proposed flag burning amendment in the United States, raise concerns

about coherence, or what Ronald Dworkin refers to as ‘‘integrity.’’92 But

if the lack of fit is so extreme as either to call into question whether the

addition has subverted the genre itself—for example, is it still a novel?—or to

lead one to conclude that a key element of the plotline has been disregarded,

then the legitimacy of the undertaking might well be placed in doubt.93

Constitutionally, these two possibilities translate into first- and second-order

amendment defects. Both are serious, even if the culturally contingent

elements of the latter reduce somewhat the urgency of the need to impose

implied limits. Thus an amendment that assaulted the very foundations of

constitutionalism would be direr than one that challenged some constitu-

tional practice or tradition of particular importance to a given regime. It

must be emphasized, however, that it is not the introduction of significant

and far-reaching change that is per se objectionable; rather, it is the content

of this change insofar as it implicates the question of constitutional identity.

Indeed, Burke, whose resistance to change has often been exaggerated,

wryly pointed out, in that same speech on representation, that when a man

91 Id. at 166.

92 RONALD DWORKIN, LAW’S EMPIRE 176–275 (Harvard Univ. Press 1986). My example of a

constitutional narrative follows Dworkin’s chain novel illustration. Id. at 228–238.

93As William Harris has pointed out, ‘‘[T]he kinds of alteration an example of a genre can bear

are limited and . . . going beyond these limits will not only change the characteristics of the

example but also will change the genre that it represents.’’ WILLIAM HARRIS, THE INTERPRETABLE

CONSTITUTION 171 (Johns Hopkins Univ. Press 1993).


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says he only means ‘‘a moderate and temperate reform,’’ what he really

means to do is ‘‘as little good as possible.’’94

4.

‘‘At bottom,’’ wrote one of the dissenting Indian judges in Kesavananda,

‘‘the controversy in these cases is as to whether the meaning of the

Constitution consists in its being or in its becoming.’’95 He then called

attention to the country’s national symbol, the chakra, which is the wheel

that appears on the Indian flag. It signifies, he said, that the Constitution is

‘‘a becoming, a moving equilibrium.’’96 Hence he concluded that ‘‘true

democracy and true republicanism’’ are incompatible with judicial review of

constitutional amendments. His error was in creating a false dichotomy

between being and becoming. As Burke reminds us, ‘‘[B]y preserving the

method of nature in the conduct of the state, in what we improve, we are

never wholly new; in what we retain, we are never wholly obsolete.’’97

What a constitution becomes can never be considered separately from what

it has been; it is, in Burke’s words, ‘‘a deliberate election of ages and

generations.’’

But the Indian justice’s further point was well taken. He was concerned

that an expansion of the Court’s review function to pass on the legality of

constitutional amendments might ‘‘blunt the people’s vigilance, articulate-

ness and effectiveness.’’98 That concern should not be taken lightly; indeed,

it is as valid as when it was expressed years ago in Judge Learned Hand’s

eloquent thought about self-government and the judiciary. ‘‘This much I

think I do know—that a society so riven that the spirit of moderation is gone,

no court can save; that a society where that spirit flourishes, no court need

save; that in a society which evades its responsibility by thrusting upon the

courts the nurture of that spirit, that spirit in the end will perish.’’99 The

problem of the unconstitutional constitutional amendment will not be

solved by a blind faith in the courts to save us from the immoderate

excesses of the amendment process. After demonstrating that there are

applications of that process that do exceed acceptable limits, it may be

prudent for those who have done so to then rely on the people to see that

such amendments are not passed. But such reliance first requires knowing

why there are limits and why this matters.

94 Burke, supra note 73, at 278.


96 Id. at 2010.

97 EDMUND BURKE, REFLECTIONS ON THE REVOLUTION IN FRANCE 38 (Bobbs-Merrill 1955).


99 LEARNED HAND, THE SPIRIT OF LIBERTY 164 (Alfred A. Knopf 1953).


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Thus, understanding that constitutional change may produce an

unconstitutional result does not in itself indicate a particular remedy.

Indeed, the degree to which we choose to endow courts with a judicial

review responsibility over constitutional amendments should depend at least

in part on the relative ease or difficulty of altering the document. While

Hand’s point is universally applicable, the provision in some polities for

straightforward and simple amending increases the likelihood that in these

places deeply problematic change could occur while the spirit of moderation

remained generally prevalent. Elsewhere the amendment process itself

encourages, if not guarantees, moderation. What Lawrence Sager has aptly

called ‘‘the obduracy of the Constitution to amendment’’100 may, as he

points out, be structurally conducive to achieving change agreeable ‘‘to

generations unborn in circumstances unknown.’’101 This is a point with

which Edmund Burke would no doubt agree. Where, as in the U.S. case,

amending the Constitution is such a formidable undertaking, there should

perhaps be a much stronger presumption against the exercise of judicial

review than, say, in India, where the adoption of amendments is only

slightly more challenging than the enactment of ordinary law. In principle,

however, it might be desirable to keep the option open, if for no other reason

than that this could serve to remind politicians and citizens that, as Godel

understood, constitutional change is inherently bounded. But if ever

confronted with the felt need to exercise this option, sober heads might

well wonder whether it was any longer worth doing.

100 LAWRENCE SAGER, JUSTICE IN PLAIN CLOTHES: A THEORY OF CONSTITUTIONAL PRACTICE 82 (Yale Univ.

Press 2005).

101 Id. at 164.


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Documents

An unconstitutional constitution? A comparative perspective